Sallie Burgess v. Western Union Telegraph Company, 92 Tex. 125

DENMAN, Associate Justice. This suit was brought by Miss Sallie Burgess against the company to recover damages for its alleged negligent delay in delivering to her uncle Hufham a telegram sent by her from New Orleans, La., to him at Beaumont, Texas.

The company pleaded under oath “that the contract alleged to have been made with this defendant was made, if at all, on June 30, 1896, and that before bringing this action no notice was given within sixty days to this defendant of any claim for damages, as condition precedent to said suit, though said original contract which was made in the State of Louisiana required said notice to be given in not longer time than sixty days;” and also a general denial.

The cause having been tried before the court without a jury and judgment having been rendered against it, the company appealed to the Court of Civil Appeals, which court having reversed, and rendered judgment “that Sallie Burgess take nothing by the suit,” she has brought the case to this court upon writ of error.

The first assignment of error is that the Court of Civil Appeals erred in holding that the stipulation in the contract pleaded in said special answer was valid. ■ The stipulation was as follows: “The company will not be liable for damages or statutory penalties in any case where the claim is not presented in writing.within sixty days after the message is filed with the company for transmission.” There was no proof that any attempt was made to give notice. Revised Statutes,

article 3379, provides that “no stipulation in any contract requiring notice to be given of any claim for damages as a condition precedent to the right to sue thereon shall ever be valid unless such stipulation is reasonable, and any such stipulation fixing the time within which such notice shall be given at a less period than ninety days shall be void.” There being no proof in the record as to what the Louisiana law is on this subject, under the rule in this State we must presume that the statute is the same there as here. Tempel v. Dodge, 89 Texas, 71, and cases cited.

Hence the statute of Louisiana, where the contract was made, as well as that of Texas, where the company is alleged to have negligently delayed the delivery of the telegram, declares the stipulation void. We have held in the recent case of Armstrong' v. Railway that this statute is not in violation of that clause of the Constitution of the United States which empowers Congress “to regulate commerce with foreign nations and among the several States and with the Indian tribes.” Tel. Co. v. James, 162 U. S., 650. In Railway v.

Sloan, 18 Supreme Court Reporter, 289, Solan, a shipper of cattle from Iowa to Illinois, while being transported under a drover's contract which contained a stipulation “that the company shall in no event be liable to the owner or person in charge of said stock for any injury to his person in any amount exceeding the sum of $500,” being injured in Iowa, was allowed to recover $1000 notwithstanding such stipulation, on the ground that the statute of Iowa did not permit the company to limit its common law liability as a carrier of passengers by special contract.

We apprehend that under the clear reasoning of the court the ruling must have been the same had the shipment been from Illinois to Iowa, the other facts being unchanged. If so it seems to be direct authority for holding that under the Texas statute alone the stipulation requiring notice to be given in sixty days is void in so far as damages are claimed for negligent delay in the delivery of the message after it reached Beaumont.

Again, the statutes of Texas and Louisiana under consideration do not go as far as did the Iowa statute, in this, that the latter prohibited the making of any contract limiting the common law liability of the carrier, while the former only strikes down such as are unreasonable on the question as to the time within which notice shall be given, and declares that any “stipulation fixing the time within which such notice shall be given -:at a less period than ninety days shall be void,” thereby in effect determining that such a stipulation is within the meaning of the act unreasonable.

We see no reason why the Legislature of a State may-not prohibit its courts from giving effect to unreasonable stipulations in contracts, nor why it may not go one step further, and-, within just and reasonable bounds, declare certain stipulations unreasonable.

It is to be presumed that the Legislature in enacting this statute investigated and in good faith determined that by requiring the notice to be given within less than ninety days many just claims would be defeated, and that no legitimate rights of the party liable for the damages would probably be imperiled if he were required to so frame his contract as to allow at least ninety days for giving the notice. We can not say that in so doing they have exceeded their power.

We are therefore of opinion that said assignment of error must be sustained, and that the Court of Civil Appeals were not authorized upon that ground to reverse or render judgment. The second assignment is in effect that the Court of Civil Appeals “erred in its conclusion that the evidence in this case did not sustain the finding of the court that defendant was guilty of negligence in failing to deliver the message, in that it is an invasion of the province of the trial court before which the evidence was produced orally, and the finding should be conclusive.” This assignment can not be sustained.

The Court of Civil Appeals has the power to review and set aside the finding of the trial court or jury upon the facts. Choate v. Railway, 44 S. W. Rep., 69; 91 Texas, 406. The third and last assignment is that the Court of Civil Appeals erred in rendering the judgment.

We are of opinion that this assignment is well taken, because, (1) as we have seen, the stipulation in the contract was not valid, and (2) while the court, as stated above, had the power to review the finding of the trial court upon the question of negligence and to find the fact different!)-, such finding by it could only be made the basis of a reversal and remanding but not of a rendition of judgment. Choate v. Railway, supra.

The Court of Civil Appeals having, however, found as a fact that there was no negligence, such finding is binding upon this court in so far as it becomes our duty to review the judgment below, and necessitates a reversal of the judgment as a matter of law upon the assignments of the company complaining of the judgment. It is insisted however by the company, that under the rule announced in Joske v. Irvine we should render judgment on the ground that in legal contemplation there is not any evidence in the record from which a court or jury would he authorized to find negligence.

In view of another trial we do not deem it proper to set out the circumstances in evidence in addition to those stated in the opinion of the Court of Civil Appeals, from which we have concluded that we can not so hold. The judgment of the Court of Civil Appeals is affirmed in so far as it reversed the judgment below and reversed in so far as it rendered judgment, and the cause is remanded. Reversal of judgment affirmed. Rendition of judgment by Court of Civil Appeals reversed and cause remanded.